| People v Kadry |
| 2009 NY Slip Op 04924 [63 AD3d 856] |
| June 9, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Mohamed Kadry, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B.Goodman of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Collini, J.),imposed July 19, 2007, upon his conviction of conspiracy in the second degree (two counts) andcriminal solicitation in the second degree (two counts), upon a jury verdict, the resentence beingindeterminate terms of 8 to 24 years' imprisonment on each count of conspiracy in the seconddegree and 1 to 3 years' imprisonment on each count of criminal solicitation, all terms to runconcurrently.
Ordered that the resentence is modified, on the law, by reducing the term of imprisonmentimposed upon each conviction of conspiracy in the second degree from an indeterminate term of8 to 24 years' imprisonment to an indeterminate term of 5 to 15 years' imprisonment; as somodified, the resentence is affirmed.
When the Supreme Court originally sentenced the defendant, it imposed a term of 5 to 15years' imprisonment on each of two counts of conspiracy in the second degree, and directed thatthe terms run consecutively. The defendant subsequently moved, pursuant to CPL 440.20, to setaside the sentences as violative of Penal Law § 70.25. The People conceded the illegalityof the original sentences, and the Supreme Court granted the defendant's motion to set aside thesentences. The court resentenced the defendant, inter alia, to concurrent terms of 8 to 24 years'imprisonment on the conspiracy counts.
A court may not alter a validly imposed sentence once it has commenced (see CPL430.10; People v Vaughan, 62AD3d 122 [2009]; People v Romain, 288 AD2d 242, 243 [2001]). The term of 5 to15 years' imprisonment originally imposed upon each count of conspiracy in the second degree,a class B felony, was lawful (see Penal Law § 70.00 [2] [b]; [3]). The only defectin the sentence was in directing that those prison terms run consecutively. "Once that illegalitywas successfully challenged by the defendant in his motion pursuant to CPL 440.20, there wasno other defect to rectify" (People v Romain, 288 AD2d at 243; see People vYannicelli, 40 NY2d 598 [1976]). Thus, the Supreme Court lacked any statutory or inherentauthority to modify the defendant's already-commenced legal sentence by increasing the term ofimprisonment imposed upon each count of conspiracy in the second degree from 5 to 15 years to8 to 24 years. Rivera, J.P., Angiolillo, Carni and McCarthy, JJ., concur.